Q: Our townhouse development has recorded covenants which require upkeep of the exterior to a high standard by each owner. Not all owners follow the requirements. Some hire third rate contractors who do a poor job or take months to finish what they start. We need to find a way to get better quality work done by our homeowners and get it done quickly after starting. Our board is thinking about starting a list of acceptable contractors who we have seen perform well and requiring the owners to use them. Any suggestions?

Consider the situation where the Board of Directors has decided that they want to upgrade the appearance of an aging townhouse style condominium and they are talking about requiring all the unit owners to replace certain areas of vinyl siding with Hardiplank or similar high grade exterior product which is a much more expensive material. They are also going to require solid wood decorative shutters on some of the windows. The plan is to get bids, enter into a contract, and assess the owners because the association doesn’t have any money in reserve for this project. Some owners consider these improvements to be upgrades and say that the Board shouldn’t be able to require the owners to pay for upgrades as opposed to replacements. This article can also apply to some degree to townhouse communities which are not condos but where the association has the responsibility to maintain the exteriors of dwelling units and common facilities.

The Sale of Common Area

QUESTION:

I'm a member of the Common Area committee for our homeowners association. Yesterday a resident asked me what the process is for buying common area property, if there's a process and, if not, why not. She's interested in a tiny piece of land next to her home. I told her I'd look into it and while I admit my research skills aren't great, I cant find anything that says she can or she cant, and why. Can you help point me in the right direction?

ANSWER:

In answering you, I am assuming that this community is an HOA vs. a condominium. There is no process via statute or otherwise, nor a prohibition regarding the acquisition of common area in an HOA. The ability to do so may be addressed by the Declaration and a determination should be made if it is or not. If not, then it amounts to a decision being made by the Board of Directors, acting in their fiduciary capacity, as to whether or not the parcel being sought is, or may be, of any real use to the members to use in common. It would seem that a proposal of this sort should be publicized along with the price being offered and an opportunity given to the association members to comment at a board meeting where time is set aside specifically to hear comments on this owners proposal. I would think that an appraisal would be required so as to insure that the parcel is not sold for too little, which is not to say that the board may not require a significantly greater price. A title exam should be done to make sure that the association got title to the common area from the developer... sometimes title is overlooked. Also, there is an issue of getting City approval to carve out a parcel of land to sell to an adjacent owner that intends for it to become part of their lot. There are City regulations on subdivisions with which you must comply. You should talk to a local surveyor or engineer to find out if there is an issue.

Pool Closings

Question: I live in a condo subdivision with 176 units in Virginia Beach. Our board threatened to not open our pool this year citing the pool was too expensive to keep open. When we as homeowners purchased in this development we purchased the pool and use of it. I would think it would be pretty much understood all homeowners whether they use the pool or not are responsible via their association fees to maintain the pool and all common areas. If the cost of maintaining the pool increases, like anything else for that matter, shouldn't the board just raise the association fees to keep the pool open. Can the board decide to just close the pool that we essentially own?

Answer: Generally, the Board has the authority to make all decisions relating to the Association, unless your governing documents say otherwise. Assuming that your documents say nothing specific about operating the pool, the Board likely has this authority.

Consider that the Board is in a very tough position, as the decision to raise dues would be just as unpopular (perhaps more) than the decision to close the pool. Consider also that the Board may not have the legal authority to raise the dues over a certain amount without a full-blown owner vote (depending on what your documents allow), leaving them with no choice.

You are unhappy with the Board's decision, but what is the general feeling among the other owners? If you believe that most owners would gladly pay the increased dues in order to keep the pool open, then perhaps you should organize an owner group to gather opinions and share these thoughts with the Board, or to call an owner meeting at which people can appear and voice their opinions. You may also be able to convince the Board to view the results of an owner survey before making their decision final.

Q.: I am a member of an HOA and I have submitted a community request form to have the exterior wood trim of my home repaired or replaced. I have a vinyl and brick townhouse, but the exterior trim is all wood and parts are starting to rot. In my request form I have provided pictures of the rotting wood and areas needing repair. Our association is responsible for all exterior maintenance and replacements, including the roof. I am now being told by the Board of Directors that they will only pay $400 to $600 and the rest will have to be paid by me. This boils down to a special assessment. Is this practice legal and if it is, did it have to go before the community for a vote? Can the Board impose this change in policy by themselves?

A.: You pose an interesting question involving the limits of the power of the Board of Directors. The first place to start to determine the propriety of the action of the board is your recorded association Declaration and Amendments to that Declaration.

HOA declarations generally spell out the maintenance responsibilities which are often divided between the association and the homeowners in an HOA. HOAs vary in the manner in which maintenance responsibilities are addressed, especially in townhome style communities. Some communities require that the homeowner handle all of the exterior maintenance, but require that approval be obtained for any changes to color or materials to be applied to the exterior before work can begin. Other communities place the entire responsibility for exterior maintenance, including landscape maintenance, on the association. Others fall somewhere in between these two concepts. In recent years it has become more popular to put the responsibility on the association so as to insure regularity and uniformity of repair work which generally enhances the appearance of the neighborhood and the value of the properties in it.

Q. I have a few questions regarding storm water basins within developments. Our subdivision was established in 1995 and at that time the City was just starting to implement measures to comply with the Chesapeake Bay Preservation Act. The City required new subdivisions to implement storm water retention measures. The subdivision plat shows the ponds on individual lots. In order to ensure these ponds were maintained, the Declarant implemented Homeowner Declarations stating the ponds and embankments are designated as Common Areas and are to be maintained by the Association. Does the homeowner have any real claim to these areas since they are essentially required by law to be in place? Could the lot owner fill in the part of the bond on his property? If the Association is responsible for them as Common Area, shouldn’t they provide liability insurance to protect all members? Finally, is there any reprieve for the owner for the taxes which they must pay on the property?

A. You pose some good questions that we have heard before about drainage facilities, which are usually referred to as BMPs (a term we could explain, but it wouldn't clear up much!). For purposes of this answer let's just call them ponds. Without examining your documents we cannot provide finite answers and your documents do sound a bit unusual. Usually it is clear that the ponds are situated on various lots as shown on the subdivision plat or they are on common areas, often designated as preservation areas. The maintenance issue is most problematic when the ponds are located on parts of several lots with no indication of who is to do what. This has not been the methodology of the cities in the past seven years or so; rather, the ponds are generally designated as common areas and there is a plat notation on the subdivision plat which requires the formation of a homeowners association (HOA) to maintain the pond and the area around it.